DORMAIER v. JESSE et al, 237 Or. 578

SLOAN, J. The accident which resulted in this action occurred in a dust cloud across the highway near Connell, Washington. The car in which plaintiff was riding was struck from the rear by defendant’s car when both vehicles were being driven through the dust. Plaintiff brought this action to recover for his alleged injuries. The case is here following a new trial ordered in Dormaier v. Jesse et al, 1962, 230 Or 194, 369 P2d 131. In this last trial the court instructed that defendant was negligent as a matter of law. From the ensuing verdict and judgment for plaintiff, defendant appeals.

The facts are set forth in the former opinion. Briefly, the evidence revealed that plaintiff was riding in a car owned by plaintiff and operated by his son-in-law. When they approached the dust cloud they were following a truck. They observed the truck enter the dust cloud. It appeared that the dust obscured the highway for a distance of about 300 feet. The driver of plaintiff’s car stopped before entering the dust. The occupants observed the density of the dust and decided they could drive through. They proceeded into the dust in low gear at a speed of about five miles per hour. The car lights were turned on.

Visibility was changeable as the dust swirled in clouds of differing intensity. They were obliged to watch the road through the side windows. When nearly through the dust cloud the men observed that the truck ahead of them had stopped. Plaintiff’s driver stopped the car, partially off the highway. Shortly thereafter the car was struck from the rear by defendant’s car. Defendant testified that he could see the dust cloud for a distance of two or three miles before he reached it.

When he approached closer he saw another car coming out of the dust at about the same speed defendant said he was then driving, about 40 or 45 miles per hour. He took his foot from the throttle and entered the dust at a speed of about 40 miles per hour. He testified that when he approached the dust cloud he could not see into it and that he could not see any portion of the roadway within the dust. He did not appreciably reduce his speed from the time he entered the dust until the collision. He stated that when he first entered the dust he could see for about 150 feet.

He was later blinded by swirling dust and for the first time applied his brakes. It was too late and he collided with plaintiff’s car. He was then going about 35 miles per hour. The facts stated are not in serious dispute. We think the court did not err when the jury was told that defendant was negligent when he entered the pall of dust. To enter an area of obviously limited vision at a speed approximating 40 miles per hour without any precaution seems to us to be negligent as a matter of course. Defendant places emphasis on French v. Christner, 1944, 173 Or 158, 143 P2d 674.

The issue in the French case was whether or not French had been negligent as a matter of law when he entered a cloud of smoke. French had driven into the smoke at slow speed, with his lights turned on, quite a different situation than defendant’s conduct in the instant case. The court held that he was not negligent as a matter of law. In reaching this conclusion we do not feel bound by the -statement in the former opinion that “Jesse was, accordingly, negligent as a matter of law.” Dormaier v. Jesse, supra, 230 Or 196.

There is some difference in the evidence submitted in the last trial, in this respect, and the evidence in the former trial. However, the evidence leads to the same conclusion. The other assignments have been considered. None of them suggest a reversal. Judgment affirmed.